banning assault weapons – a legal primer for state and local action

BanninA Legal Prime

g Assault Weapons r for State and Local Action

A Publication of

ii Legal Community Against Violence

Banning Assault Weapons

A Legal Primer for State and Local Action

A Publication of

Legal Community Against Violence iii

The views expressed in this publication are those of Legal Community Against Violence.

This publication is not intended as legal advice to any person or entity, and should not be regarded as such.

April 2004

Reissued September 2004

Reprinted August 2005

Copyright 2004 by Legal Community Against Violence. All Rights Reserved.

Legal Community Against Violence

Mailing Address: 268 Bush Street, #555

San Francisco, CA 94104

Tel: 415-433-2062 Fax: 415-433-3357

E-mail: [email protected]

Web site: www.lcav.org

iv Legal Community Against Violence

Table of Contents

Statement on the Expiration of the Federal Assault Weapon Ban..........................................iii

Preface............................................................................................................................................ v

I. Introduction: How To Use This Resource ..................................................................... 1

II. Why Ban Assault Weapons? ............................................................................................ 1

III. A Brief History of Assault Weapon Regulation in the U.S............................................ 3

IV. Is the Federal Assault Weapon Ban Adequate?............................................................. 3

V. Existing State and Local Assault Weapon Bans............................................................. 5 State Bans............................................................................................................................ 5 Local Bans........................................................................................................................... 6

VI. Why Push for State and Local Action?........................................................................... 7

VII. The Legal Background ..................................................................................................... 9 The Second Amendment and State Right to Bear Arms Provisions................................... 9 Preemption ........................................................................................................................ 11 Due Process and Equal Protection .................................................................................... 13 Other Legal Challenges to Assault Weapon Bans ............................................................ 14

VIII. How LCAV Can Help ..................................................................................................... 15

Appendices ................................................................................................................................... 17 Appendix A: Assault Weapon Laws in the United States .............................................. 19 Appendix B: Snapshot Comparison of Federal and State Assault Weapon Bans .......... 21 Appendix C: Profiles of Federal and State Assault Weapon Bans and Litigation ......... 25 Appendix D: Common Legal Challenges to Laws Banning Assault Weapons.............. 39 Appendix E: Excerpts of the Federal Assault Weapon Ban........................................... 47 Appendix F: Excerpts of the California Assault Weapon Ban ...................................... 51 Appendix G: LCAV Model Law to Ban Assault Weapons............................................ 57

Legal Community Against Violence i

ii Legal Community Against Violence

Statement on the Expiration of the Federal Assault Weapon Ban The federal assault weapon ban expired on September 13, 2004. Despite overwhelming public support for its renewal, Congress and the President allowed the 10-year old law to expire. As a result, semi-automatic, military style weapons that were formerly banned under the federal law are now legal unless banned by state or local laws. Expiration of the ban, especially in light of the publics strong support for its renewal, is an outrage. Most Americans, including gun owners, not only favored renewal of the assault weapon ban, they supported strengthening it. Law enforcement officials across the country demanded that the law be renewed and made stronger. A recent study conducted by University of Pennsylvania researchers for the National Institute of Justice of the U.S. Department of Justice confirms the importance of strengthening federal regulation of both assault weapons and large capacity ammunition magazines. Unfortunately, the failure to renew the federal ban highlights the tremendous political obstacles even the most commonsense gun laws face at the federal level. The Senate voted to extend the ban in March 2004. The vote arose as an amendment to a bill sought by the National Rifle Association (NRA) to provide unprecedented legal immunity to the gun industry. The NRA ultimately directed its supporters to oppose the bill its top legislative priority rather than risk renewal of the assault weapon ban. Legal Community Against Violence (LCAV) will continue to work for swift restoration and strengthening of the federal law. But the inaction of Congress and the President reinforces our belief that we must build momentum for nationwide change through state and local policy reform. In April 2004, LCAV released Banning Assault Weapons A Legal Primer for State and Local Action as a legal roadmap for public officials and gun violence prevention activists working to ban assault weapons at the state and local level. The model law contained in the report provides a starting point for these efforts. The model defines assault weapons based on a single military feature test, bans conversion kits and large capacity ammunition magazines, and provides two options for dealing with pre-ban weapons and magazines. Californias law, the most comprehensive assault weapon ban in the country, was a key source for our model, but we also incorporated the best elements of other state and local assault weapon bans. As a result, LCAVs model is stronger than any existing state or local ban, stronger even than bills introduced in the Senate and House to improve the now-expired federal ban. The need for strong state and local gun policies is more urgent than ever. Expiration of the federal ban demonstrates that we cannot rely solely on Congress and the President. It is crucial that state and local governments implement innovative laws and policies to fill in gaps in federal law and serve as a catalyst for the nationwide policies we need. We have reissued our report, with only minor technical revisions, to help public officials and activists to pursue this important objective. Seven states and a number of local communities already have assault weapon bans in place. Many more must act to keep these weapons of war off our streets. Sue Ann L. Schiff Executive Director

September 14, 2004 Christopher S. Koper, with Daniel J. Woods & Jeffrey A. Roth, Jerry Lee Center of Criminology, University of Pennsylvania, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, Report to the National Institute of Justice, U. S. Department of Justice, June 2004.

Legal Community Against Violence iii

iv Legal Community Against Violence

Preface Most Americans favor stronger gun laws. But the history of the gun violence prevention movement shows that due to the strength of the pro-gun lobby, federal reform, even under favorable political conditions, is difficult to achieve and incremental at best. In the absence of comprehensive federal regulation, it is up to state and local governments to adopt policies to prevent gun violence. Indeed, the future of the gun violence prevention movement depends on building grassroots strength to achieve reform at the state and local level so that, ultimately, nationwide solutions will be more easily achievable. Strong state and local measures can address the concerns of specific communities and regions, improve community health and safety, fill gaps in federal policy, and act as a catalyst for the broader reforms our country needs. Unfortunately, even in the case of firearms as lethal as assault weapons, Congress has not yet established a loophole-free, permanent ban to ensure that these weapons are not available for civilian use. This year, Congress is debating whether the current federal ban, which expires in September, should be renewed. The ban should not only be renewed, it should be strengthened. Yet to renew the ban as is will be an exceptionally difficult challenge. Legal Community Against Violence (LCAV) has prepared this report to furnish advocates and public officials with the legal information they need to evaluate and pursue options at the state and local level, options that will fill the gaps in federal law and inspire our national policymakers to ban assault weapons effectively throughout the entire country. We cannot give up on Congress and must continue to advocate for stronger federal law. But we also cannot afford to wait. Too many lives are at stake. About Legal Community Against Violence Our Mission and Philosophy LCAV is a national public interest law center dedicated to preventing gun violence. We focus on policy reform at the state and local level, marshaling the expertise and resources of the legal community to transform Americas gun policies from the grassroots up. LCAV fills a unique role as the first and only lawyers organization in the gun violence prevention movement and the only organization exclusively dedicated to providing legal assistance in support of gun violence prevention.

LCAV believes that commonsense laws and policies are needed to end the epidemic of gun violence in this country. Community education and action are critical to achieving meaningful gun laws and policies. Lawyers bring an essential set of skills to this challenge. By making complex legal and policy issues understandable, conducting legal research, analyzing existing and emerging policy strategies, and generating model regulations, LCAV informs and educates communities, and empowers advocates and governments to pursue effective measures that are legally defensible. Our History and Connection to the Issue of Assault Weapons LCAV was founded in 1993, several days after a gunman with two assault weapons and a 45 caliber semi-automatic pistol shot 14 people, fatally wounding eight of them, at 101 California Street in San Francisco. Recognizing that stronger gun laws might have prevented this massacre and potentially could prevent future tragedies, Bay Area lawyers formed LCAV. LCAV and its supporters were directly involved in securing the passage of the federal assault weapon ban, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. Realizing that the federal ban dealt with just some of the assault weapons being produced or imported and did nothing about the several million assault weapons already in civilian hands LCAV has continued to support efforts to

Legal Community Against Violence v

strengthen assault weapon bans at the local, state and federal levels. In 1999, with the strong support of LCAV, California expanded and improved its law, making it the most comprehensive assault weapon ban in the country. Acknowledgments LCAV wishes to acknowledge a number of individuals from other organizations working to prevent gun violence who reviewed the report in draft form. Their comments were invaluable. We thank Eric Gorovitz of the Educational Fund to Stop Gun Violence; Kristen Rand and Tom Diaz of the Violence Policy Center; Luis Tolley of the Brady Campaign to Prevent Gun Violence united with the Million Mom March; Sue Peschin of Consumer Federation of America; Toby Hoover of the Ohio Coalition Against Gun Violence; and Thom Mannard and Catherine Griffiths of the Illinois Council Against Handgun Violence. We also thank Sayre Weaver, our former Legal Director and Special Counsel, and presently Legal Director of the Educational Fund to Stop Gun Violence and Of Counsel to Richards, Watson & Gershon, for her guidance throughout the preparation of this report. LCAVs Senior Staff Attorney Andrew Spafford is the reports primary author. Senior Staff Attorney Laura Cutilletta, also a contributor, served as primary editor. Two legal interns supported their efforts Ben Van Houten provided indispensable research assistance and Kevin Schettig assisted in the final editing process. I also want to acknowledge the support of Juliet Leftwich, Managing Attorney, and Samuel Hoover, Staff Attorney. We are grateful to our donors and to the foundations whose financial support enabled us to produce this report, in particular, The John D. and Catherine T. MacArthur Foundation, Richard & Rhoda Goldman Fund, The Joyce Foundation, The Renaissance Foundation, and VanLobenSels/RembeRock Foundation. Sue Ann L. Schiff Executive Director April 2, 2004

vi Legal Community Against Violence

I. Introduction: How To Use This Resource This report, Banning Assault Weapons A Legal Primer for State and Local Action, has been created to provide elected officials, government attorneys, and gun violence prevention activists with a practical guide to the legal and policy issues surrounding the adoption and strengthening of assault weapon bans particularly those at the state and local level. Although the report discusses the law in this area of firearms regulation, it does not offer, and is not intended to constitute, legal advice. Instead, by examining the ongoing threat of assault weapons, the scope of existing federal, state and local bans, and the extensive legal foundation supporting such bans, this report should answer many questions about the options available in individual states and communities. LCAV encourages policymakers and advocates to obtain expert counsel when considering a particular law or provision, and stands ready to provide legal research, analysis, and drafting assistance to those seeking to ban assault weapons in their states and communities. The report includes a number of appendices with valuable legal information. Appendices A-D document and summarize existing laws banning assault weapons and legal challenges to these laws, demonstrating that state and local assault weapon bans are legally viable options. Appendices E and F include excerpts of the 1994 federal ban and the current California ban. Appendix G provides a model assault weapon ban developed by LCAV. We believe that the case for banning assault weapons is overwhelming. We hope that those of you who are concerned about the toll assault weapons have taken and continue to take on our society, will use this report as a tool in your efforts to bring about change. II. Why Ban Assault Weapons? Assault weapons are semi-automatic firearms designed with military features to allow rapid and accurate spray firing. They are not designed for sport; they are designed to kill humans quickly and efficiently. Key assault weapon features include:

The ability to accept a detachable ammunition magazine, allowing for a higher rate and duration of fire, as well as faster reloading;

Forward handgrips, barrel shrouds,1 and magazines protruding in front of the trigger, allowing the shooter to hold the firearm with two hands for greater control during rapid fire (when the muzzle of the gun can quickly get too hot to hold);

Thumbhole stocks and pistol grips on rifles and shotguns, facilitating spray firing from the hip and permitting increased control of the firearm;

Folding or telescoping stocks for concealability and mobility in combat; and Muzzle brakes/compensators, which help reduce recoil and muzzle movement caused by

rapid fire.

Legal Community Against Violence 1

1 A barrel shroud is a covering attached to the barrel of a gun, or that partially or completely encircles the barrel, that allows the bearer to hold the firearm with the non-trigger hand without being burned.

These features serve to clearly distinguish assault weapons from standard sporting firearms. Some bans on assault weapons, including the federal ban, list other military features (such as bayonet mounts and grenade launchers) that are extraneous to what makes an assault weapon so deadly in civilian hands.2 Unlike machine guns fully automatic weapons that continue to fire as long as the trigger is held down (or the ammunition is expended) semi-automatic assault weapons fire one round of ammunition each time the trigger is pulled. However, assault weapons still can fire many rounds per second, limited only by the speed of the shooters trigger finger. Indeed, many experts agree that semi-automatic fire is actually more accurate tha In short, asspeople by m Tragically, aFBI data sho killed with aillustrated by d more injurie

July 18UZI rif

April 2 January

AK-47

SeptemMAC-1

January Februa

woundunknow

July 1, died).

April 2 Octobe

Bushmweapon

2 See Educati2003; ViolencThem?, May 3 The Nationaon their manumachine guns4 Violence Po

2 n automatic fire, and thus more lethal.3

ault weapons are well designed to perform the military function of killing large numbers of aking spray firing easy.

ssault weapons have been all too effective at performing this task. A recent study analyzing ws that 20% of the law enforcement officers killed in the line of duty from 1998 to 2001 weren assault weapon.4 Some assault rifles are also accurate enough for use as sniper rifles, as the D.C. area sniper shootings in October 2002. The end result is the same more deaths an

s.

Mass Shootings Using Assault Weapons A Tragic History Partial List

, 1984 San Ysidro, CA (McDonalds restaurant) 21 killed, 19 wounded. Firearms included a 9mm le.

3, 1987 Palm Bay, FL (shopping center) 6 killed, 14 wounded. Ruger Mini-14.

17, 1989 Stockton, CA (elementary school) 5 children killed, 29 children and 1 teacher wounded. .

ber 14, 1989 Louisville, KY (printing plant) 8 killed, 12 wounded. Firearms included two 1s and an AK-47.

25, 1993 Langley, VA (CIA Headquarters) 2 employees killed, 3 wounded. AK-47. ry 28, 1993 Waco, TX (Branch Davidian compound) 4 ATF special agents killed, 16 others ed. Firearms included 123 AR-15s, 44 AK-47s, 2 Barrett 50 caliber rifles, 2 Street Sweepers, and an n number of MAC-10 and MAC-11s.

1993 San Francisco, CA (office building) 8 killed, 6 wounded (one of the wounded subsequently Firearms included two TEC-DC9s.

0, 1999 Columbine, CO (high school) 13 killed, 23 wounded. Firearms included a TEC-DC9.

r 2002 Washington, D.C. area (sniper shootings) 10 killed, 3 wounded during a 3-week period. aster XM-15 E2S rifle (not banned under the federal assault weapon law, but banned as an assault in California, Connecticut, Maryland and New Jersey).

onal Fund to Stop Gun Violence, Killing Machines The Case for Banning Assault Weapons, Sept. e Policy Center, Bullet Hoses: Semiautomatic Assault Weapons What Are They? What's So Bad About

2003. l Firearms Act of 1934 regulated machine guns by imposing an excise tax and registration requirements facture and transfer. 26 U.S.C. 5801 et seq. In 1986 Congress banned the transfer and possession of not already in lawful circulation. 18 U.S.C. 922(o); see also 18 U.S.C. 922(b)(4). licy Center, Officer Down Assault Weapons and the War on Law Enforcement, May 2003.


III. A Brief History of Assault Weapon Regulation in the U.S. The first ban in the nation on semi-automatic assault weapons was a Los Angeles ordinance passed in February 1989. The ordinance was adopted in response to a Stockton, California schoolyard shooting in which a mentally ill individual with a criminal record used an AK-47 assault rifle to kill five children and wound 30 others. The ban prohibited the transfer and possession of assault weapons within the City of Los Angeles.5 Later that year, California became the first state to pass an assault weapon ban, prohibiting the sale of 75 types, models, and series of firearms. Also in 1989, during the administration of President George H.W. Bush, the federal government took its first major action to restrict the marketing of semi-automatic weapons. Using authority granted to the Secretary of the Treasury in the Gun Control Act of 1968, the Bureau of Alcohol, Tobacco and Firearms (ATF) banned the importation of more than 40 types of military-style assault rifles because they did not meet the sporting purposes test imposed by that law.6 In 1994, after several other states (including Hawaii, New Jersey, Connecticut and Maryland) and local governments had passed laws to ban assault weapons, Congress adopted a federal ban on the manufacture and possession of semi-automatic assault weapons. The ban included a 10-year sunset clause and several significant loopholes. On November 14, 1997, President Clinton directed ATF to temporarily block the importation of nearly 600,000 assault rifles that had been granted import permits and freeze pending applications to import another one million assault rifles. In April 1998, ATF determined that these weapons (covering at least 59 models of assault rifles) did not meet the sporting purposes test and could not, therefore, be legally imported into the country.7 Since then, Massachusetts and New York have enacted assault weapon bans, while California has strengthened its ban by incorporating additional provisions that are stronger than federal law. For a listing of current federal, state and local assault weapon laws, and a comparison of existing federal and state assault weapon bans, see Appendices A and B, respectively. IV. Is the Federal Assault Weapon Ban Adequate? The federal assault weapon ban prohibits the manufacture, transfer and possession of semi-automatic assault weapons and the transfer and possession of large capacity ammunition feeding devices (i.e., those capable of holding more than 10 rounds of ammunition). The law bans 19 named types, models and series of assault weapons (and copies or duplicates of those weapons), and any semi-automatic firearm with at least two specified military features and the ability to accept a detachable magazine (this last criterion does not apply to shotguns).8

5 City of Los Angeles Ordinance No. 164388 defined assault weapon to include 13 specific makes and models, and any semiautomatic, centerfire rifle or carbine which accepts a detachable magazine of twenty rounds or more. 6 The Gun Control Act of 1968 included restrictions on weapons manufactured outside the United States. Under 18 U.S.C. 925(d)(3), the import approval authority of the Secretary of the Treasury is limited to firearms and ammunition generally recognized as particularly suitable for or readily adaptable to sporting purposes. 7 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles, 2-3, Apr. 1998. 8 18 U.S.C. 921(a)(30).


While the federal ban was a phenomenal achievement when it was passed in 1994, it also was a victim of numerous compromises, unfortunate regulatory decisions, and, ultimately, exploitation by the gun industry. The data available indicate that the 1994 law has reduced the availability and use of assault weapons in crimes, but such data also show that the law has significant limitations: The generic definition of "assault weapon" requires each weapon to have two

features. In contrast, in 1989 when the administration of President George Himportation of semi-automatic assault rifles based on the sporting purposes provision of the Gun Control Act of 1968, and again in 1997-98 when President Clinton took similar action, ATF used a test requiring only one specified military feature.9

The law only bans the transfer and possession of assault weapons and large capacity ammunition feeding

devices manufactured after the effective date of the Act (September 13, 1994). Unlike several state bans that require the registration of grandfathered assault weapons, the federal law has no such requirement, leaving millions of unregulated assault weapons and large capacity feeding devices on the civilian market.

Many firea irt the ban a

tactic the g thout compromisreplacing srelated funsuppressor

Collapsiblestock

Fixed tele

The post-ban 9 The features spbayonet, flash suto accept a detacTreasury, supra 10 Thumbhole st

4 rms manufacturers wasted little time redesigning their assault weapons to skun industry calls sporterization either by removing a military feature wi

ing the guns ability to spray large amounts of ammunition rapidlyuspect components with substitutes not named under federal law (ctions). For example, pistol grips were sometimes swapped for thus were replaced with muzzle breaks or muzzle compensators.10

Pre-Federal Ban Colt AR-15

Post-Federal Ban Bushmaster XM15 Carbine Assau

Magazine well for detachabhigh-capacity ammunition

Pistol Grip

-style stock

Pistol Grip Detachable ammunition magazine

Bushmaster XM15 is an AR-15 type rifle, and thus directly comparable to ecified by ATF in 1989 were: folding/telescoping stocks, separate pistol ppressors, bipods, grenade launchers, and night sights. In 1997-98, ATFhable magazine (a feature that it had considered but excluded in 1989). Snote 7. ocks are already a specified military feature under the California and Con

Le specified military .W. Bush blocked the and accurately, or by but which serve similar or mbhole stocks, and flash Flash suppressor

lt Rifle

le magazine

Muzzle brake

Source: Violence Policy Center

the pre-ban Colt AR-15.

grips, the ability to accept a added to the list the ability ee U.S. Department of the

necticut bans.

gal Community Against Violence

The provision of the law banning copies or duplicates was intended to prevent manufacturers from re-releasing the 19 named assault weapons under new names with superficial changes.11 Unfortunately, the phrase copies or duplicates was not defined in the statute, and ATF has not enforced the provision. As a result, despite numerous cases of manufacturers exploiting this loophole, no firearms have been banned for being a copy or duplicate.12

The law contains a sunset provision and will expire on September 13, 2004, unless it is renewed. Renewal of the federal assault weapon ban is essential but so is strengthening the law and removing its numerous loopholes. For a profile and excerpts of the federal ban, see Appendices C and E, respectively. V. Existing State and Local Assault Weapon Bans State Bans Although the federal assault weapon ban applies throughout the country, states are permitted to adopt their own bans to supplement or exceed federal law.13 State bans can be broken into four basic categories based on how the provisions in the ban compare to the federal law (which is the minimum restriction in every state). The four categories are as follows:

1. States that ban most or all assault weapons, and significantly exceed federal law: California

2. States that ban many assault weapons, and exceed federal law in numerous respects: Connecticut and New Jersey

3. States that exceed federal law in some respects, but defer to federal law in others: Hawaii, Maryland and Massachusetts

4. States that essentially duplicate federal law: New York

In addition, although the District of Columbia does not have a specific ban for assault weapons, its handgun ban encompasses assault pistols and its machine gun ban encompasses firearms that can discharge [s]emiautomatically, more than 12 shots without manual reloading.14 Under a separate law, the District

11 Of the nine assault weapon brand/types listed by manufacturer in the law, six have been remarketed in new, sporterized configurations. See Violence Policy Center, Illinois Land of Post-Ban Assault Weapons, Mar. 2004. 12 For example, Colt simply removed the flash suppressor from the banned AR-15 Sporter and renamed it the Match Target to make the weapon post-ban compliant (the Match Target is now available with a muzzle brake instead of a flash suppressor). Another example is the AB-10 post-ban version of the TEC-9 and TEC-DC 9. The AB-10 removes the threaded barrel included on the TEC, but is otherwise virtually identical. 13 At least two states regulate assault weapons without imposing a true ban. Minnesota prohibits the possession of semi-automatic military style assault weapons by persons under 18 years of age, and imposes some restrictions on transfers through firearms dealers. Minn. Stat. 624.712 et seq. Virginia limits the possession and transportation of certain semi-automatic assault firearms to citizens and permanent residents. Virginia also imposes a general ban on the importation, sale, possession and transfer of the Striker 12 and semi-automatic folding stock shotguns of like kind, but does not refer to them as assault firearms. Va. Code 18.2-308.2 et seq. 14 D.C. Code 7-2501.01(10)(B). For prohibitions on possession of handguns and machine guns, see D.C. Code 7-2502.01 et seq.; on sale, see D.C. Code 7-2505.01 et seq.; and on manufacture, see D.C. Code 7-2504.01.


of Columbia imposes strict tort liability on manufacturers, importers and dealers of assault weapons for all direct and consequential damages that arise from injury or death due to the discharge of an assault weapon in the District (with limited exceptions).15 While some states ban specific assault weapons by name, others use a military features test to define and ban assault weapons. Still other states combine both approaches. California's ban is significant for several reasons. Initially, California named and banned 75 types, models and series of assault weapons, plus minor variations; required assault weapons that were lawfully owned prior to the ban to be registered; and generally prohibited the transfer of those weapons within the state. After several years, however, it became apparent that manufacturers were altering their assault weapons just enough to evade the ban. As noted above, similar problems arose with the federal ban. California responded in 1999 by making a key improvement to its ban, applying a one specified military feature standard to determine which firearms qualify as assault weapons (rather than the two feature standard used in the federal ban and by several other states). By using this standard, almost all semi-automatic firearms designed for rapid and accurate spray firing are barred from the civilian market. In 2002 another enhancement to the ban was adopted, requiring the California Department of Justice to conduct an annual security and safe storage inspection of every person, firm or corporation holding a permit to own or possess an assault weapon, including a reconciliation of the inventory of assault weapons. Permit holders maintaining an inventory of less than five assault weapons are generally subject to inspections only once every five years. Other noteworthy state provisions include New Jerseys registration statute, which limits the registration option to assault firearms with a legitimate target-shooting purpose effectively requiring almost 60 models, types and series of assault weapons to be transferred out of state, rendered inoperable, or surrendered to law enforcement. In addition, Connecticut and New Jersey prohibit the sale of assault weapon conversion kits, and Hawaii bans the manufacture, possession and transfer of all large capacity ammunition feeding devices even those lawfully possessed before the ban. For profiles of state assault weapon bans, and excerpts of the California statute, see Appendices C and F, respectively. Local Bans At least 17 counties, cities and villages in four states currently ban assault weapons to some degree. Among the local bans are those in:

Chicago, Cicero and Cook County, Illinois (which each name and ban at least 59 types, models and series of weapons);

Cleveland, Ohio (which bans most semi-automatic firearms that accept detachable large capacity ammunition magazines); and

New York, New York (which bans semi-automatic rifles/shotguns if they have one or more specified military features, and which separately regulates, but does not ban, assault pistols under an ordinance applicable to all handguns).

For citations to these and other local assault weapon bans and regulations, see Appendix A.

15 D.C. Code 7-2551.01-03.

6 Legal Community Against Violence

VI. Why Push for State and Local Action? There are many reasons to adopt state and local assault weapon bans. As discussed below, such bans can close loopholes in the federal law, protect the public if the federal law expires, and build momentum for a stronger federal ban. In addition, public support for assault weapon bans makes passage of effective state and local laws a realistic option. The federal assault weapon ban may expire, resulting in an increase in crime. If Congress and the President do not act before September 13, 2004, the federal assault weapon ban will expire. In the year before the 1994 federal ban went into effect, over 200,000 assault weapons were manufactured.16 A similar flood of assault weapons is sure to resume if the federal ban expires. Despite its shortcomings, the federal ban has been effective at reducing crime. There are approximately 2 million assault weapons (as defined under federal law) in circulation in the United States.17 Although this figure represents only about 1% of the 200 million firearms estimated to be in civilian hands, assault weapons constituted between 8% and 6.8% of all firearm traces often referred to as crime gun tracing requested by law enforcement in 1993.18 Since the federal assault weapon ban went into effect, the percentage of crime gun traces involving assault weapons has dropped dramatically; between 1993 and 2001, the drop was 79% for assault weapons named in the federal ban, and 58% when both named assault weapons and copies or duplicates of those weapons were counted.19 In light of the sharp reduction in crime gun traces involving federally-defined assault weapons, it seems clear that the federal ban has sharply reduced the use of these once popular crime guns. State and local governments that pass their own bans establish a level of protection for their citizens regardless of what happens federally. State and local bans can close loopholes. Even if the federal ban is renewed, more can and must be done. Studies show that: Twenty percent of the 211 law enforcement officers killed in the line of duty from 1998 to 2001 were

killed with an assault weapon.20 Loopholes in the federal ban leave many assault weapons unregulated, creating a threat to the lives of law enforcement officers. State and local bans can help address this serious issue.

16 Jeffrey A. Roth & Christopher S. Koper, The Urban Institute, Impact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of 1994, 3, 48, Mar. 13, 1997. 17 U.S. Department of Justice, Bureau of Justice Statistics, Guns Used in Crime, 6, July 1995. 18 Id.; Roth & Koper, supra note 16, at 60-63. Gun tracing refers to the tracking of firearms to their original point of sale to assist law enforcement in identifying suspects, providing evidence for prosecution, establishing stolen status and proving ownership. 19 Brady Center to Prevent Gun Violence, On Target: The Impact of the 1994 Federal Assault Weapons Act, Mar. 2004. By averaging tracing data for the pre-ban period (1990-1994) and the post-ban period (1995 and after), the Brady report cites more conservative figures of 66% and 45%, respectively. See also Letter from William E. Moschella, Assistant U.S. Attorney General, to Dianne Feinstein, U.S. Senator (Sept. 15, 2003) (on file with LCAV). 20 Violence Policy Center, supra note 4.


In an analysis of firearm homicides in Milwaukee County, Wisconsin between 1992 and 1995, 5.4% of the 149 guns used in 418 gun murders were assault weapons, even though assault weapons only made up about 1% of the firearms in circulation nationwide.21

Researchers evaluating the 1994 Maryland assault pistol ban found that during the first six months of

1995, the Baltimore City Police Department recovered 55% fewer assault weapons than would have been expected if no ban had been in place.22

Prior to the passage of the 1989 California assault weapon ban, young adults in California with a

criminal history (but whose crimes did not make them prohibited purchasers under federal or state law) were twice as likely to purchase an assault-type handgun as those without such a history. Such young adults were also 1.5 times more likely than other handgun purchasers to be charged with subsequent offenses in the three years following the purchase. Purchasers of assault-type handguns who had a history of violent crime were 2.3 times more likely to have subsequent criminal offenses and 3.0 times as likely to have subsequent firearm or violent offenses.23

Assault weapon bans have strong public support. The public, including a majority of gun owners, overwhelmingly supports banning assault weapons. Recent polls show that:

77 percent of likely 2004 presidential election voters support renewal of the federal assault weapon ban, while only 21% oppose renewal.24

66 percent of gun owners who are likely 2004 presidential election voters support renewal of the federal assault weapon ban, while only 30% oppose renewal.25

65 percent of Americans favor strengthening the federal assault weapon ban, including 51% of gun owners.26

67 percent of Field & Stream readers do not consider assault weapons to be legitimate sporting guns.27 State and local action can be a catalyst for national reform. State and local action can have a powerful influence on federal policy. Assault weapon bans adopted at the state and local level can be more rigorous than the federal regulations, serving as models for what federal law should be. In adopting regulations that are stronger than the federal ban, state and local governments build momentum for national reform and demonstrate, even more clearly than polling data, that there is a real base of support for effective regulation of these weapons.

21 Roth & Koper, supra note 16 at 96. 22 Douglas S. Weil & Rebecca C. Knox, The Maryland Ban on the Sale of Assault Pistols and High-Capacity Magazines: Estimating the Impact in Baltimore, 82 Am. J. Pub. Health 297, Feb. 1997. 23 Garen J. Wintemute et al., Criminal Activity and Assault-Type Handguns: A Study of Young Adults, 32 Annals of Emergency Med. 44, July 1998. 24 Americans for Gun Safety, Taking Back the Second Amendment: A Seven-Step Blueprint for Democrats to Promote Responsibility and Win the Gun Vote, 7, Oct. 2003 (citing a national poll of 802 likely 2004 presidential election voters conducted by Penn Schoen & Berland from October 1- 6, 2003, with a +/-3.46% margin of error). 25 Id. 26 Consumer Federation of America, Consumers Strongly Support Renewing and Strengthening the Federal Assault Weapons Ban, Feb. 2004 (citing a national survey of more than 1,000 adult Americans conducted by Opinion Research Corporation International from February 18-22, 2004, with a +/-3% margin of error). 27 Field & Stream, The 2003 National Hunting Survey, July 2003 (citing an informal survey of 2,897 readers).


VII. The Legal Background

The Second Amendment is not a barrier to federal, state or local assault weapon bans.

No federal or state assault weapon ban has ever been overturned by the courts.

There are a number of judicial opinions analyzing the legality of assault weapon bans now in effect at the federal, state and local levels. The legal challenges against these bans have included alleged violations of the Second Amendment or a state right to bear arms, preemption by federal or state law, and denial of due process or equal protection. With minor exceptions, none of these challenges has been successful. No federal or state assault weapon ban has ever been overturned by the courts, and only one local jurisdiction (Columbus, Ohio) has had its ban struck down on substantive grounds.28 These legal issues are summarized below, along with a list of less common (and thus far, unsuccessful) challenges. The Second Amendment and State Right to Bear Arms Provisions The Second Amendment The Second Amendment to the U.S. Constitution states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The U.S. Supreme Court addressed the scope of the Second Amendment in United States v. Miller, 307 U.S. 174 (1939). In that case, the Court rejected a Second Amendment challenge brought by two individuals charged with violating a federal law prohibiting the interstate transportation of sawed-off shotguns. The Court held that the obvious purpose of the Amendment is to assure the continuation and render possible the effectiveness of the state militia, and the Amendment must be interpreted and applied with that end in view. Id. at 178. Since Miller, the scope of the Second Amendment has been addressed in nearly 200 federal and state appellate cases. These decisions uniformly reject Second Amendment challenges to firearms laws. The U.S. Supreme Court has had numerous opportunities to review these lower court decisions and has consistently refused to do so. The federal assault weapon ban has never been challenged on Second Amendment grounds. Every Second Amendment challenge to state and local assault weapon bans has been rejected.29 In fact, following decisions

28 For discussion of the Columbus, Ohio ordinance, see infra p. 13. In three other instances, one involving a state ban and two involving local bans, courts have invalidated specific provisions while upholding the core of the assault weapon ban. See Silveira v. Lockyer, 312 F.3d 1052, 1087-92 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003), invalidating one of the exceptions in the 1999 amendment to Californias law; Robertson v. City & County of Denver, 874 P.2d 325, 334-35 (Colo. 1994), appeal after remand, 978 P.2d 156 (Colo. Ct. App. 1999), striking down several minor parts of the definition of assault weapons in a Denver, Colorado ordinance; Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 203-5 (N.Y. Gen. Term 1994), invalidating a portion of the definition of assault weapons in a Rochester, New York ordinance. 29 See Silveira, 312 F.3d at 1087-92; Peoples Rights Organization v. City of Columbus, 152 F.3d 522, 531-32 (6th Cir. 1998); Citizens for a Safer Community, 627 N.Y.S.2d at 203-5.


by the U.S. Supreme Court, lower courts considering challenges to state and local gun laws have held that the Second Amendment constrains only the federal government, and not actions by state or local governments.30 State Right to Bear Arms Provisions

C M

The District

States with

No court has ever struck down a state or local ban on assault weapons based on a state right to bear arms provision.31 The constitutions of most states recognize a right to bear arms. Unlike the Second Amendment, many of these state provisions specifically recognize an individual right to bear arms or have been interpreted by the courts to protect an individual right. However, every state court that has considered a state right to bear arms challenge to a firearms law has determined that the right at issue is not absolute.32

No court has struck down a state or local ban on assault weapons for violating a state right to bear arms.

Courts have considered and rejected state right to bear arms challenges to state and local assault weapon bans in Colorado, Connecticut, Illinois, Ohio and Oregon.33 In

each challenge, the courts used a reasonableness test in determining that the law at issue did not violate the state right to bear arms. For example, the Ohio Supreme Court upheld a Cleveland assault weapon ban as a reasonable regulation designed to promote the welfare and safety of its residents.34 Nearly every state with a right to bear arms clause in its constitution, or a similar statutory provision, uses a

reasonableness test to determine whether a state or local law violates this right.35 See LCAVs web site, www.lcav.org, for state-by-state information on right to bear arms provisions and related case law.

30 Prior to Millernot upon that of t(1886); United Sposition. See Lo& Pistol Club, InF.2d 261, 270-713

wAf3

R3

AC1315, 1318-22 (Opreemption statudid not alter the s34 See Arnold, 6135 Weaver, suprareasonableness te

10 States with no right to bear arms alifornia Iowa Maryland innesota New Jersey

of Columbia also has no right to bear arms provision

a right to bear arms only for militia service Rhode Island Kansas Massachusetts New York , the Supreme Court held that the Second Amendment is a limitation upon the power of Congress and he states. See Miller v. Texas, 153 U.S. 535, 538 (1894); Presser v. Illinois, 116 U.S. 252, 265 tates v. Cruikshank, 92 U.S. 542, 553 (1875). Federal appellate courts continue to reiterate this ve v. Pepersack, 47 F.3d 120, 123-24 (4th Cir. 1995), cert. denied, 516 U.S. 813 (1995); Fresno Rifle c. v. Van De Kamp, 965 F.2d 723, 729-31 (9th Cir. 1992); Quilici v. Village of Morton Grove, 695 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

wealth, 681 A.2d 152, 156 (Pa. 1996), the Pennsylvania Supreme Court found that assault delphia County and the City of Pittsburgh were preempted by 18 Pa. Cons. Stat. 6120. ferenced the states right to bear arms provision (Pa. Const. Art. 1, 21), the reference was only olding the preemption statute.

e Right to Bear Arms Provisions: What They Tell Us About Legal Challenges to Gun an Individual Right to Bear Arms ( 2003 by Sayre Weaver) (on file with the author). ity and County of Denver, 874 P.2d 325, 334-35 (Colo. Ct. App. 1994); Benjamin v. Bailey, 662 Conn. 1995); City of Chicago v. Taylor, 774 N.E.2d 22, 28-29 (Ill. App. Ct. 2002); Arnold v. 6 N.E.2d 163, 166-73 (Ohio 1993); Oregon State Shooting Ass'n v. Multnomah County, 858 P.2d 1 In Ortiz v. Commoneapon bans in Philalthough the court re

or the purpose of uph2 Sayre Weaver, Stategulations Based on

3 See Robertson v. C.2d 1226, 1230-35 (ity of Cleveland, 61r. Ct. App. 1993). Although the Colorado and Oregon Legislatures subsequently adopted broad tes that prohibited many local firearms regulations, including bans on assault weapons, these statutes cope of the states' right to bear arms clauses. 6 N.E.2d at 171-73. note 32. Note that Alaska and New Hampshire state courts apply a higher standard than the st to firearms laws challenged under the right to bear arms clauses in their state constitutions. Id.


Preemption Preemption occurs when a higher level of government removes the regulatory power of a lower level of government. State and local laws are sometimes challenged on the ground that the federal government has preempted state (and thus local) regulation of the subject matter. Similarly, local laws are sometimes challenged on the ground that the state has preempted local regulation of the subject matter. In the context of banning assault weapons, it is important to note:

Federal law does not preempt state and local bans on assault weapons. States differ considerably in how and to what extent they preempt local assault weapon bans.

Preemption is a complex legal doctrine. Federal and state preemption must be considered separately and are discussed separately below. Federal Preemption Under the Supremacy Clause in Article VI of the U.S. Constitution, a federal law is binding on all state and local governments so long as Congress duly enacted the law pursuant to one of its limited powers. In some cases, federal law removes state authority (and thus local authority) to regulate a specific subject matter. This process is called federal preemption. Often, Congress will make its intention to preempt an area of state law clear by expressly stating its intent in the language of a statute. Absent such a statement, courts presume that there is no federal preemption unless they can be absolutely certain that Congress intended to preempt the field of regulation.36 If a court is absolutely certain that there is a pervasive scheme of federal legislation that leaves no room for state regulation of the particular subject, or an irreconcilable conflict exists between the federal regulation and the challenged law, the court will find that the federal law preempts the state law.37

Federal law does not preempt state and local bans on assault weapons.

Congress has made no express statement of its intent to take over the broad field of firearms regulation. Courts have held that congressional regulation of firearms does not create a scheme so pervasive that it leaves no room for state and local law.38 Thus, absent a specific, irreconcilable conflict between a challenged state or local firearms law and a federal enactment, there is no federal preemption of that state or local law.

State Preemption State preemption refers to a states removal of a local governments power to regulate a specific subject matter. The existence and degree of state preemption of local firearms regulation varies widely.

As with federal preemption, states preempt local laws by adopting constitutional provisions or statutes that expressly remove the authority of local governments to regulate in certain areas. In the absence of such an express declaration, some state courts will determine whether the legislature has implied an intent to preempt. In general, courts will find that a local law is preempted if it conflicts directly with state law by

36 Gregory v. Ashcroft, 501 U.S. 452, 464 (1991). 37 See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). See also Richmond Boro Gun Club, Inc. v. City of New York, 896 F. Supp. 276, 285-86 (E.D.N.Y. 1995), affd, 97 F.3d 681 (2d Cir. 1996). 38 See Richmond, 896 F. Supp. at 285.


requiring what the state law prohibits, or prohibiting what state law requires. In addition, when a comprehensive scheme of state regulation exists on a particular subject matter, many state courts find that the state legislature thereby indicated an implied intent to assert exclusive authority over that subject matter.

States differ considerably in how and to what extent they preempt local bans on assault weapons.

LCAV encourages public officials and activists interested in pursuing local bans on assault weapons to contact us for assistance in understanding the preemption law in their state. See also LCAVs web site, www.lcav.org, for state-by-state

information on state preemption of local law. In this report, solely as general background, we have divided the states into three basic categories as a starting point for considering what legislative options might be available to local communities across the country. 1. States with no provision or statute expressly preempting local regulation of firearms

Connecticut, Hawaii, Illinois, Kansas, Massachusetts, New Jersey, and New York

In these seven states, local governments have broad authority to regulate firearms. LCAV has identified local assault weapon laws in four of these states. None of these ordinances has

been invalidated because of preemption.

In two of these states Illinois and New York state courts have reviewed and upheld local ordinances banning assault weapons.

Five of these states Connecticut, Hawaii, Massachusetts, New Jersey, and New York have enacted statutes banning assault weapons. In adopting its statute, the New York Legislature provided that nothing in the state law is intended to prohibit local governments from enacting or maintaining stricter local assault weapon laws. In the other four states, the local assault weapon laws have not been challenged on preemption grounds.

Unlike states, the District of Columbia receives its legislative authority from Congress, which has given the District broad regulatory power over all aspects of firearms. As noted previously, the District of Columbia bans the possession, sale and manufacture of handguns and machine guns under provisions which encompass assault pistols and certain other assault weapons, and separately imposes strict tort liability on manufacturers, importers and dealers of assault weapons discharged in the District.

2. States with provisions expressly preempting local regulation of one or more aspects of firearms but otherwise permitting broad regulation of firearms at the local level Alaska, California, Nebraska, and Ohio

In these four states, local governments retain authority to regulate firearms, but the state legislature has expressly removed this authority in certain areas. None of these states has expressly preempted local assault weapon bans, but a local ban would require

o ensure that it did not conflict with existing preemption provisions.

ns are in effect in several communities. None of these ordinances has been challenged ounds.

acted a strong and comprehensive statute banning assault weapons. California courts d whether the existence of the state law implies an intent to preempt local regulation

ns.

1careful drafting t

In Ohio, local baon preemption gr

California has enhave not evaluateof assault weapo2 Legal Community Against Violence

3. States that have enacted broad preemption statutes

In the remaining 39 states, local governments possess limited authority to regulate firearms. The preemption statutes in these states vary, but each one expressly preempts all, or substantially all, aspects of local firearms regulation. In many of these states there are statutory exceptions, although none of the exceptions expressly allows a local ban on assault weapons. In some states, local bans on assault weapons, adopted prior to the enactment of a preemption statute, are grandfathered under the terms of the statute and continue in effect. Even if local bans on assault weapons are preempted, LCAV is available to assist public officials and activists in evaluating other potential local strategies to prevent gun violence. Due Process and Equal Protection Due Process under the Fifth and Fourteenth Amendments The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution provide that no person shall be deprived of life, liberty, or property, without due process of law. A law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or that fails to provide explicit standards for those who apply the law, violates due process under the federal constitution. As the U.S. Supreme Court explained in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), [i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Note, however, that clearly written laws also can violate due process when they are overbroad, impinging on constitutionally protected conduct. Id. at 114-15. Most courts have rejected due process challenges to assault weapon bans under the U.S. Constitution and analogous state constitutional provisions.39 However, in 1994, the Sixth Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee) overturned a Columbus, Ohio assault weapon ordinance on the ground that its attempt to ban 46 makes and models of assault weapons was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.40 The court observed that the vagueness problems were not difficult to remedy, noting approaches that provide a general definition of the type of weapon banned, rather than naming makes and models.41 In response to the 1994 decision, Columbus drafted a new ordinance using a general definition of assault weapons similar to other Ohio local bans that had been upheld by the Ohio state courts.42 This ordinance also was overturned by the Sixth Circuit on the ground that it was unconstitutionally vague.43 No other court has followed the Sixth Circuits reasoning, and a subsequent Sixth Circuit decision upholding the federal assault weapon bans list of prohibited weapons against a similar challenge may have undermined the 1994 ruling.44 39 See Kasler v. Lockyer, 2 P.3d 581, 597-600 (Cal. 2000); Benjamin v. Bailey, 662 A.2d 1226, 1240-42 (Conn. 1995); Coalition of N.J. Sportsmen v. Whitman, 44 F. Supp. 2d 666, 675-84 (D. N.J. 1999), affd 263 F.3d 157 (3d Cir. 2001). 40 Springfield Armory v. City of Columbus, 29 F.3d 250, 252-53 (6th Cir. 1994). In particular, the court objected to similar assault weapons of the same type, function or capability not being banned, and to terms such as [firearms] with the same action design and slight modifications or enhancements not being defined in the ordinance. The court also noted the lack of a statement of purpose explaining the Citys reasoning behind the provisions. 41 Id. at 253. 42 See Arnold v. City of Cleveland, 616 N.E.2d 163 (Ohio 1993); City of Cincinnati v. Langan, 640 N.E.2d 163 (Ohio Ct. App. 1994). 43 Peoples Rights Organization v. City of Columbus, 152 F.3d 522, 535-39 (6th Cir. 1998). The court determined that the following phrases were unconstitutionally vague: [any semiautomatic action, center fire rifle or carbine] that accepts a detachable magazine with a capacity of 20 rounds or more, may be restored, and may be readily assembled. 44 Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002). See also Coalition of N.J. Sportsmen, 44 F. Supp. 2d at 675-84, which rejected the Sixth Circuits approach.


Equal Protection under the Fifth and Fourteenth Amendments Equal Protection under the Fifth and Fourteenth Amendments The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction, the equal protection of the laws. The federal government is similarly limited by the Fifth Amendment. However, when a law makes a classification neither involving fundamental rights nor proceeding along suspect lines, the law will withstand constitutional scrutiny so long as it bears a rational relationship to a legitimate governmental interest.45

The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction, the equal protection of the laws. The federal government is similarly limited by the Fifth Amendment. However, when a law makes a classification neither involving fundamental rights nor proceeding along suspect lines, the law will withstand constitutional scrutiny so long as it bears a rational relationship to a legitimate governmental interest.45 As with due process claims, most courts have rejected equal protection challenges to assault weapon bans under the U.S. Constitution and analogous state constitutional provisions.46 When equal protection challenges have been upheld, they have addressed only certain provisions, not the entire law. For example, in Silveira v. Lockyer, the Ninth Circuit struck down an exception to the California assault weapon ban for retired peace officers, noting that retired officers had no reasonable need for such weapons. 47 The effect of this decision, which upheld the rest of the law, was actually to broaden the scope of Californias assault weapon ban.

As with due process claims, most courts have rejected equal protection challenges to assault weapon bans under the U.S. Constitution and analogous state constitutional provisions.46 When equal protection challenges have been upheld, they have addressed only certain provisions, not the entire law. For example, in Silveira v. Lockyer, the Ninth Circuit struck down an exception to the California assault weapon ban for retired peace officers, noting that retired officers had no reasonable need for such weapons. 47 The effect of this decision, which upheld the rest of the law, was actually to broaden the scope of Californias assault weapon ban.

In most instances, careful drafting can avoid successful challenges for denial of due process and equal protecual protec

In Peoples Rights Organization v. City of Columbus, the Sixth Circuit struck down a grandfather clause for certain pre-ban assault weapons, and part of another grandfather clause for certain pre-ban large capacity magazines, finding no rational basis to justify the provisions different treatment of individuals who registered firearms under a former ordinance and persons who did not do so.48 (As noted above, the court overturned the remainder of the ordinance on vagueness grounds.)

In Peoples Rights Organization v. City of Columbus, the Sixth Circuit struck down a grandfather clause for certain pre-ban assault weapons, and part of another grandfather clause for certain pre-ban large capacity magazines, finding no rational basis to justify the provisions different treatment of individuals who registered firearms under a former ordinance and persons who did not do so.48 (As noted above, the court overturned the remainder of the ordinance on vagueness grounds.) Finally, in Citizens for a Safer Community v. City of Rochester, the New York Court of Appeals upheld the ordinances ban of assault weapons based on a definition of generic features but struck down the listing of specific assault weapon models because identical firearms made by different manufacturers would be treated differently.49

Finally, in Citizens for a Safer Community v. City of Rochester, the New York Court of Appeals upheld the ordinances ban of assault weapons based on a definition of generic features but struck down the listing of specific assault weapon models because identical firearms made by different manufacturers would be treated differently.49 LCAV believes that in most instances, successful due process and equal protection challenges can be avoided through careful drafting. LCAV believes that in most instances, successful due process and equal protection challenges can be avoided through careful drafting. tion. tion. Other Legal Challenges To Assault Weapon BansOther Legal Challenges To Assault Weapon Bans Other challenges to assault weapon bans include those based on the First Amendment's freedom of speech and assembly provisions, the Fifth Amendment's Takings Clause (private property shall not be taken for public use without just compensation), the right to privacy, the separation of powers, and the prohibition against bills of attainder (laws that legislatively determine guilt and inflict punishment upon an identifiable individual without judicial trial). None of these challenges has been successful.

For additional information on common legal challenges to laws banning assault weapons, see Appendix D. Also see Appendix C, which summarizes legal challenges to federal and state assault weapon bans. 45 Heller v. Doe, 509 U.S. 312, 320 (1993), see also Schweiker v. Wilson, 450 U.S. 221, 230 (1981). Classifications along suspect lines can include a suspect class (e.g., race) or quasi-suspect class (e.g., gender), see, e.g., Lavia v. Pennsylvania, 224 F.3d 190, 200 (3d Cir. 2000). 46 See Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002); Kasler v. Lockyer, 2 P.3d 581, 584-92 (Cal. 2000); Benjamin v. Bailey, 662 A.2d 1226, 1235-39 (Conn. 1995); Coalition of N.J. Sportsmen, 44 F. Supp. 2d at 684-87. 47 Silveira v. Lockyer, 312 F.3d 1052, 1087-92 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003). 48 Peoples Rights Organization, 152 F.3d at 531-533. 49 Citizens for a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 203-5 (N.Y. Gen. Term 1994). Most jurisdictions appear to have avoided this issue by including a provision that prohibits copies or duplicates of the listed weapons.


VIII. How LCAV Can Help Assault weapons are a lethal threat to every community and should be banned from civilian use. Strong local and state laws are needed to supplement the present federal law and to replace it if it is not renewed before its September 13, 2004 sunset date. There is widespread public support for banning assault weapons, and with careful drafting, such measures should withstand legal challenge. Public officials and advocates need not wait for Congress to act. State and local governments can and should take advantage of legal options that will limit access to assault weapons in their communities. For a model assault weapon ban that can serve as a starting point for state or local legislation, see Appendix G. LCAV is available to help public officials and advocates develop effective, legally defensible assault weapon laws. We can review regulatory options, and assist with the research, analysis and drafting of such laws. Please contact us at 415-433-2062, or via e-mail at [email protected].


Appendices Appendix A Assault Weapon Laws in the United States Appendix B Snapshot Comparison of Federal and State Assault Weapon Bans Appendix C Profiles of Federal and State Assault Weapon Bans and Litigation Appendix D Common Legal Challenges to Laws Banning Assault Weapons Appendix E Excerpts of the Federal Assault Weapon Ban Appendix F Excerpts of the California Assault Weapon Ban Appendix G LCAV Model Law to Ban Assault Weapons


Appendix A

Assault Weapon Laws in the United States

This Appendix is part of the report, Banning Assault Weapons A Legal Primer for State and Local Action, a publication of Legal Community Against Violence.



Assault Weapon Laws in the United States Below is a list of the major assault weapon bans and regulations at the federal and state levels, known local ordinances banning assault weapons, and citations for each. Federal Ban 18 U.S.C. 921 et seq. State Bans California Cal. Penal Code 12275 et seq. Connecticut Conn. Gen. Stat. 53-202a et seq. Hawaii Haw. Rev. Stat. 134 et seq. Maryland Md. Public Safety Code 5-101 et seq. and Crim. Law 4-301 et seq. Massachusetts Mass. Gen. Laws ch. 140, 121 et seq. New Jersey N.J. Rev. Stat. 2C:39-1 et seq. New York N.Y. Penal Law 265.00 et seq. State Regulations50 Minnesota Minn. Stat. 624.712 et seq. Virginia Va. Code 18.2-308.2 et seq. District of Columbia D.C. Code 7-2551.01 et seq. Local Bans (sorted by state) Indiana Ohio

Cleveland 628.01 et seq. Cincinnati 708-37 Dayton 138.24 et seq. Dublin 137.08 Toledo 549.23

New York

Albany 193-15 et seq. Buffalo 180-1 New York City 10-301 et seq. Rochester 47-5

Massachusetts Boston 18-1.1(16A)

East Chicago 9.28.080 Gary 135.03

Illinois51

Aurora 29-49 Chicago 8-20-030 and 8-24-025 Cicero 62-256 et seq. Cook County Ord. 99-0-27 Niles 66-234 and 235 Oak Park 27-1-1 et seq.

Local Regulations (sorted by state) Kansas Wichita 5.88.015 50 Minnesota prohibits the possession of semi-automatic military style assault weapons by persons under 18 years of age, and imposes some restrictions on transfers through firearms dealers. Minn. Stat. 624.712 et seq. Virginia limits the possession and transportation of certain semi-automatic assault firearms to citizens and permanent residents. Va. Code 18.2-308.2 et seq. Virginia also imposes a general ban on the importation, sale, possession and transfer of the Striker 12 and semi-automatic folding stock shotguns of like kind, but does not refer to them as assault firearms. Id. The District of Columbia imposes strict tort liability on manufacturers, importers and dealers arising from injury or death due to the discharge of an assault weapon in the District. D.C. Code 7-2551.01 et seq. In addition, although the District of Columbia does not have a specific ban for assault weapons, its handgun ban encompasses assault pistols and its machine gun ban encompasses firearms that can discharge [s]emiautomatically, more than 12 shots without manual reloading. D.C. Code 7-2501.01(10)(B). See also D.C. Code 7-2502.01 et seq. (prohibiting possession of handguns and machine guns), 7-2505.01 et seq. (prohibiting sale), and 7-2504.01 (prohibiting manufacture). 51 More than a dozen Illinois communities also ban the sale and/or possession of handguns.


Appendix B

Snapshot Comparison of Federal and State Assault Weapon Bans




Snapshot Comparison of Federal and State Assault Weapon Bans*

List of banned assault weapon

(AW) types, models, and series

Generic AW features Other weapons Treatment of

post-ban weapons

Treatment of pre-ban weapons

Federal** 19 AW types,

models and series are named

Firearms w/ any 2 features and can accept a detachable magazine (latter does not apply

to shotguns)

None

Possession, transfer and

manufacture of AWs prohibited

Grandfathered: AWs lawfully

possessed on bans effective date. No registration

California** 75 AW types,


Rifles and pistols: any 1 feature and can accept a detachable

magazine. Shotguns: 2 features, or can accept a detachable magazine or revolving cylinder

CA Attorney General may

petition court to add to the list of

prohibited weapons



Grandfathered: AWs possessed prior to bans

effective date and registered within

limited time

Connecticut** 67 AW types,


Uses federal definition Conversion kits prohibited



Grandfathered: named AWs

possessed prior to bans effective

date and registered within limited time

Hawaii None Uses federal definition pistols only

None


manufacture of assault pistols

prohibited

Grandfathered: assault pistols possessed and

registered prior to bans effective date

Maryland

17 assault pistol

types, models and series are

named

None

66 AW types, models and series

are named and regulated but

not banned

Possession and transfer of

assault pistols prohibited

Grandfathered: assault pistols

possessed prior to bans effective


Massachusetts 19 AW types,


Uses federal definition

Large Capacity Weapons are regulated but

not banned***

Possession and transfer of AWs

prohibited

Grandfathered: AWs possessed prior to bans effective date. No registration

New Jersey** 63 AW types,


Fixed magazine rifles: >15 rounds. Shotguns: any 1 feature. Pistols:

no generic feature definition

Conversion kits prohibited

Knowing possession, as

well as transfer and manu-

facture, of AWs prohibited

Grandfathered: some AWs

purchased prior to bans effective


New York 19 AW types,


Uses federal definition None



Grandfathered: AWs manu-

factured prior to federal bans effective date. No registration

* Almost all firearms referenced are semi-automatic (exceptions include revolving cylinder shotguns). ** Challenged in the courts and upheld. *** Firearms that have a fixed, or can accept a detachable, large capacity feeding device, and certain rotating cylinder firearms are regulated but not banned.


Is the transfer of

grandfathered weapons allowed?

Is the possession of grandfathered

weapons allowed?

Large Capacity Magazines (LCM)

possession & transfer

Magazine grandfathering? Other restrictions

Penalties for manufacture/

possession/transfer

Allowed Allowed Prohibited Transfer and

possession allowed for magazines

None Up to 5 years imprisonment (and a fine)

Generally prohibited within

the state

Limits on places to possess

Possession allowed, transfer prohibited

Possession allowed, no

transfer after bans effective date

CA DOJ has right to inspect the

storage of AWs

Up to 8 years imprisonment

Generally prohibited within the state (named weapons only)

Limits on places to possess Allowed N/A

Must report theft within 72 hours


Generally prohibited within

the state Allowed Prohibited No None Up to 5 years imprisonment

Generally prohibited Allowed

Possession allowed, transfer prohibited Possession allowed None

Up to 3 years imprisonment (and

a maximum fine of $5,000)

Allowed

Allowed, but an owners permit/

license is required

Prohibited

Transfer and possession allowed

for magazines possessed as of bans

effective date

None

Up to 15 years imprisonment (and

a maximum fine of $15,000)

License required for sale

Allowed, but an owners license is required

Possession allowed w/ a registered AW if the LCM is used

in competitive shooting. Transfer

prohibited

No

Civil liability for owner unless

weapon is stolen and reported w/in

24 hours


Allowed Allowed Prohibited Transfer and

possession allowed for magazines

None Up to 7 years imprisonment


Appendix C

Profiles of Federal and State Assault Weapon Bans and Litigation




Profiles of Federal and State Assault Weapon Bans and Litigation The following profiles provide a brief overview of current assault weapon bans, focusing on the major provisions of each law and the holdings of relevant legal challenges. Some exceptions and minor provisions are not covered in these profiles (for example, exclusion of 22 caliber tube ammunition feeding devices from bans on large capacity ammunition feeding devices). Exceptions to assault weapon bans which are generally not summarized in the profiles include those for: Antique firearms (those made before 1899); Law enforcement and military personnel; Licensed firearms dealers, manufacturers and importers; Olympic target shooting pistols; and

Permanently inoperable firearms. A more detailed review of these bans is available on LCAVs web site (www.lcav.org), or you can contact us at 415-433-2062, or via e-mail at [email protected]. Federal Assault Weapon Ban Public Safety and Recreational Firearms Use Protection Act, Title XI, Subtitle A of the Violent Crime Control and Law Enforcement Act of 1994. 18 U.S.C. 921 et seq. Effective Date: September 13, 1994

What is Banned: Manufacturing, transferring and possessing semi-automatic assault weapons and

transferring and possessing large capacity ammunition feeding devices. 18 U.S.C. 922(v)(1) and (w)(1).

Definition of Assault Weapon:

Nineteen named types, models and series and copies or duplicates of those firearms in any caliber. Semi-automatic pistols and rifles that have the ability to accept a detachable magazine and possess

at least two specified military features, and semi-automatic shotguns that possess at least two specified military features. 18 U.S.C. 921(a)(30).

Definition of Large Capacity Ammunition Feeding Device: A magazine, belt, drum, feed strip, or

similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition. 18 U.S.C. 921(a)(31).

Key Exceptions:

Grandfather Clause The law does not apply to the transfer and possession of assault weapons and large capacity ammunition feeding devices that were otherwise lawfully possessed on September 13, 1994, or to large capacity ammunition feeding devices manufactured on or before September 13, 1994. 18 U.S.C. 921(a)(31), 922(v)(1) and 922(w)(1).

Certain named firearms (as they were designed on October 1, 1993), as well as their replicas or duplicates, are excluded from the definition of assault weapon. 18 U.S.C. 922, App. A.

Absent a serial number, a large capacity ammunition feeding device is presumed to be a pre-ban device with respect to possession. 18 U.S.C. 922(w)(4).


Penalties: Any person who knowingly and illegally manufactures, transfers, or possesses a semi-automatic assault weapon, or who knowingly and illegally transfers or possesses a large capacity ammunition feeding device, is subject to a fine, imprisonment for up to five years, or both. The potential penalties increase if the violation is intentional, or when an assault weapon is used or carried in certain other crimes. 18 U.S.C. 924(a)(1)(B), (b) and (c).

Sunset Provision: Unless renewed by Congress, the federal assault weapon ban will expire on September 13, 2004. Legal Challenges: The federal assault weapon ban has withstood all legal challenges. In Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002), the Sixth Circuit Court of Appeals rejected equal protection challenges to the federal ban raised by gun manufacturers, retailers, and individual gun owners under the Due Process Clause of the U.S. Constitutions Fifth Amendment. The court found that both the list of prohibited weapons, and the list of generic military features, were rational classifications within Congress' legislative authority. A challenge under the Commerce Clause (which limits the scope of Congress power to enact legislation) was rejected by the district court, and was not appealed (see Olympic Arms v. Magaw, 91 F. Supp. 2d 1061 (E.D. Mich. 2000)). In Navegar, Inc. v. United States, 192 F.3d 1050 (D.C. Cir. 1999), cert. denied, 531 U.S. 816 (2000), the United States Court of Appeals for the District of Columbia rejected constitutional challenges to the federal ban raised by gun manufacturers under the Commerce Clause and the Bill of Attainder Clause (which prohibits laws specifically singling out individuals or businesses and imposing punishment on them without trial).


California Assault Weapon Ban The Roberti-Roos Assault Weapons Control Act of 1989 (AWCA). Cal. Penal Code 12275 et seq. Effective Date: The original Act generally became effective January 1, 1990.52 The 1999 amendments to

the AWCA became effective January 1, 2000. Cal. Penal Code 12276.1(e), 12281(c), (f), 12285(g). What is Banned:

Manufacturing, causing to be manufactured, distributing, transporting, importing into the state, keeping for sale, offering or exposing for sale, giving, lending and possessing any assault weapon within the state. Cal. Penal Code 12280(a)(1), (b), (j).

Manufacturing, importing into the state, keeping for sale, offering or exposing for sale, giving, and lending large-capacity magazines. California does not prohibit the possession of large-capacity magazines. Cal. Penal Code 12020(a)(2).

Definition of Assault Weapon:

Seventy-five named types, models and series of firearms. California defines series to include all other models that are only variations, with minor differences, of those models listedregardless of the manufacturer. Cal. Penal Code 12276(e).

Semi-automatic pistols and semi-automatic centerfire rifles that have the capacity to accept a detachable magazine, and possess any specified military feature. Cal. Penal Code 12276.1.

Semi-automatic shotguns that have the ability to accept a detachable magazine, or that have two specified military features, or any shotgun with a revolving cylinder. Id.

In addition, the state Attorney General may petition a superior court in a county with a population greater than one million people to add models to the list of prohibited assault weapons. Cal. Penal Code 12276.5.

Definition of Large Capacity Ammunition Feeding Device: California uses the term "large-capacity

magazine," which means any ammunition feeding device with the capacity to accept more than 10 rounds. Cal. Penal Code 12020(c)(25).

Key Exceptions: Grandfather Clause Any person who lawfully possessed an assault weapon before the

relevant effective dates of the AWCA, its 1999 amendment, or the addition of the weapon to the list of banned assault weapons, as appropriate, could retain possession if the weapon was registered with the state within a limited time. Otherwise, all other assault weapons had to be sold to a licensed firearms dealer, removed from the state, or, in some cases, rendered permanently inoperable. In-state transfers of registered assault weapons can only be made to licensed gun dealers or local law enforcement. Cal. Penal Code 12276.1, 12276.5, 12280(b), (j) and 12285.

Other Regulations:

Persons who receive a registered assault weapon by bequest or intestate succession are required to render the weapon inoperable, sell it to a licensed gun dealer, remove it from the state, or obtain a permit within ninety days of acquisition. Cal. Penal Code 12285(b).

52 Due to a prolonged legal challenge, which was ultimately unsuccessful, the effective date of provisions relating to AK and AR-15 series assault weapons was delayed until August 16, 2000.


Unless a permit is obtained allowing for additional uses of a registered assault weapon, such a weapon may only be possessed in a limited number of places. Cal. Penal Code 12285(c).

The California Department of Justice must conduct an annual security and safe storage inspection of every person, firm or corporation holding a permit to own or possess an assault weapon, including a reconciliation of the inventory of assault weapons. Permit holders maintaining an inventory of less than five assault weapons are generally subject to inspections only once every five years. Cal. Penal Code 12289.5.

Penalties:

Any person who illegally manufactures or causes to be manufactured, distributes, transports, imports, sells, gives or lends an assault weapon is subject to imprisonment in the state prison for four, six, or eight years. When the assault weapon is transferred to a minor, an additional year is added to the sentence. Cal. Penal Code 12280(a).

Any person who illegally possesses an assault weapon is subject to imprisonment not exceeding one year. Cal. Penal Code 12280(b).

Any person who illegally manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends a large-capacity magazine can be sentenced to up to one year in county jail or state prison. Cal. Penal Code 12020(a)(2).

Sunset Provision: None. Legal Challenges: With the exception of one minor provision (noted in Silveira v. Lockyer, below), the California assault weapon ban has withstood all legal challenges. In Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (Dec. 1, 2003), the Ninth Circuit Court of Appeals rejected challenges to the 1999 amendments to the AWCA based on the U.S. Constitutions First Amendment freedom of association, the Second Amendment, the Fifth Amendment Takings Clause (private property shall not be taken for public use without just compensation), and plaintiffs informational privacy rights. In addition, while the court found that the AWCAs exception regarding off-duty police officers did not offend the Fourteenth Amendments Equal Protection Clause, it found no rational basis for excluding retired law enforcement officers from the ban, striking down that provision (which actually had the effect of strengthening the ban). In Kasler v. Lockyer, 2 P.3d 581 (Cal. 2000), the California Supreme Court rejected a taxpayers suit against the original AWCA, holding that the ban did not violate the equal protection doctrines of the U.S. Constitutions Fourteenth Amendment or the California Constitution, the separation of powers doctrine (which bars legislative bodies from improperly delegating their authority), or the due process clauses under the U.S. and California Constitutions. In Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992), the Ninth Circuit Court of Appeals rejected challenges to the AWCA under several provisions of the U.S. Constitution, including the Bill of Attainder Clause (which prohibits laws specifically singling out individuals or businesses and imposing punishment on them without trial), the Supremacy Clause, and the Second Amendment. A right to privacy challenge was rejected by the district court, and was not appealed (see Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 746 F. Supp. 1415 (E.D. Cal. 1990).


Connecticut Assault Weapon Ban Conn. Gen. Stat. 53-202a through 53-202k Effective Date: October 1, 1993; amended in 2001. What is Banned: Possessing, distributing, transporting, importing, keeping for sale, offering or exposing

banning assault weapons – a legal primer for state and local action

Documents

state assault weapon

local assault weapon

publication of legal

state bans

assault weapon laws

legal primer

legal advice

legal challenges